Category: Ethics

Hero of Alexandria (born around 10 AD) is credited with developing the first steam engine, the first vending machine and the first known wind powered machine (a musical organ). Given the revolutionary impact of the steam engine centuries later, it might be wondered why the Greeks did not use these inventions in their economy. While some claim the Greeks did not see the implications, others claim the decision was based on concerns over social stability. The development of steam or wind power on a significant scale would have displaced slave labor. This could have caused social unrest or even contributed to a revolution.

While what prevented the Greeks from developing steam or wind power can still be debated, an anecdote about Roman emperor Vespasian was clear about his opposition to a labor-saving construction device: he stated he must always ensure the workers earned enough money to buy food and this device would put them out of work.

While labor saving technology has advanced dramatically since Hero and Vespasian, the basic questions remain the same. These include the question of whether to adopt the technology and questions about the impact of such technology on specific individuals and society.

Obviously, each labor-saving advancement must (by its nature) eliminate some jobs and create some initial unemployment. For example, when factory robots are introduced to make cars, then human laborers will be displaced from those jobs. Obviously, this initial impact tends to be negative on the displaced workers while generally being positive for the employers.

While Vespasian expressed concerns about the impact of such devices, a commonly held view about more recent advances is that they have had a general positive impact. The usual narrative is that these advances replaced the lower-paying (and often more dangerous or unrewarding) jobs with better jobs while providing more goods at a lower cost. So, while some individuals might suffer at the start, the invisible machine of the market would result in an overall increase in utility for society. Not everyone agrees with this narrative and people tend to fear most what the next innovation might inflict.

The positive narrative can be the foundation for a utilitarian moral argument in favor of labor-saving technology. The gist is that the overall increase in benefits outweighs the harms created. Thus, on utilitarian grounds, the elimination of these jobs by means of technology is morally acceptable. Naturally, each situation can be debated in terms of the benefits and the harms, but the basic moral reasoning seems solid. If the technological advance that eliminates jobs creates more good than harm for a society, then the advance seems morally acceptable.

Obviously, people can disagree about who they regard as counting morally and who they regard as not counting (or not counting as much). Obviously, a person who focuses on the impact on workers will often have a different view than someone most concerned with the employer.

Another concern is what purpose of such advances should be. From the standpoint of a typical employer, the end is obvious: reduce labor to reduce costs and thus increase profits (and reduce labor troubles). The ideal would, presumably, to replace any human whose job can be adequately done cheaper by a machine. Of course, there is an obvious concern: to make money a business needs customers who have money. So, if profit is a concern, there must always be some people who have an income and who are not replaced by unpaid machines. One possible pinnacle of this sort of system might consist of a business model in which one person owns machines that produce goods or services that are sold to other business owners. On this model, everyone is a business owner, and everyone is a customer. This path does, of course, have some dystopian options. For example, it is easy to imagine a world in which most people are displaced, unemployed or underemployed while a small elite enjoys a lavish lifestyle supported by automation and the poor. Well, more so than our current dystopian world.

A more utopian view, the Star Trek future, is that the end of automation is to eliminate boring, dangerous, and unfulfilling jobs to free human beings from the tyranny of imposed labor. This is the scenario that anarchists like Emma Goldman promised: people would do the work they loved, rather than laboring as servants to make others wealthy. This path also has some dystopian options, such as the gentle one of Wall E. One can also imagine less gentle dystopias in which having the machines do everything for us is a nightmare.

 

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Deep Brain Stimulation (DBS) involves the surgical implantation of electrodes into the brain that, as the name indicates, stimulate the brain. The procedure is used to treat movement disorders and Tourette’s syndrome. It can also be used to treat neuropsychiatric disorders (such as PTSD).

From a moral standpoint, the use of DBS in treating such conditions is no more problematic than using surgery to repair a broken bone. If these were the only applications for DBS, then there would be no real moral concerns about the process. However, as is sometimes the case in medicine, there are potential applications that do raise moral concerns.

One matter for concern has been a philosophical problem for some time. To be specific, DBS can be used to stimulate the nucleus accumbens (a part of the brain associated with pleasure). While this can be used to treat depression, it can also (obviously) be used to create pleasure directly. Some might see it as a version of the infamous pleasure machine scenario of so many Ethics 101 classes. This is a technological upgrade to the classic pig objection most famously considered by J.S. Mill in his work on Utilitarianism. Thanks to these stock discussions, the ethical ground of pleasure implants is well covered (although, as always, there are no truly decisive arguments).

While the sci-fi/philosophy scenario of people in pleasure comas is interesting, what is more interesting is the ethics of DBS as a life-enhancer. That is, getting the implant not to use to excess or in place of “real” pleasure, but to make life a bit better. To use the obvious analogy, the excessive scenario is like drinking oneself into a stupor, while the life-upgrade would be like having a drink with dinner. On the face of it, it would be hard to object if the effect was simply to make a person feel a bit better about life—and it could even be argued that this would be preventative medicine. Just as person might be on medication to keep from developing high blood pressure or exercise to ward off diabetes, a person might get a brain boost to ward off potential depression. That said, there is a concern about abusing the technology (and the iron law of technology states that any technology that can be abused, will be abused).

Another area of concern is the use of DBS for enhancements. For example, if DBS can improve memory in Alzheimer’s patients, then perhaps it could do the same for healthy people. It is not difficult to imagine people seeking to boost their memory or other abilities through such technology. This, of course, is part of the broader topic of brain enhancements (which is part of the even more general topic of enhancements). As David Noonan has noted, DBS might become analogous to cosmetic or plastic surgery: what was once intended to treat serious injuries has also become an elective enhancement surgery. Just as people seek to enhance their appearance by surgery, it seems reasonable to believe that they might do so to enhance their mental abilities.

From a moral standpoint, there is the same concern that has long held about cosmetic surgery, namely the risk of harm when seeking enhancement. However, if enhancing one’s looks via surgery is morally acceptable, then enhancing one’s mood, memory and so on would be acceptable as well. In fact, it could be argued that such substantial improvements are more laudable than merely improving appearance.

There is also the stock moral concern with fairness: those who can afford such enhancements will have yet another advantage over those less well off, thus widening the chasm. This is a legitimate concern. But, aside from the nature of the specific advantage, nothing new morally. If it is acceptable for the wealthy to buy advantages in other ways, this should not be a special exception.

 

 

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Way back in the summer of 2014, the United States Supreme Court struck down a Massachusetts law that forbid protestors from approaching within 35 feet of abortion clinics. The buffer zone law was established in response to acts of violence. Not surprisingly, the court based its ruling on the First Amendment, accepting that such a buffer zone violates the right of free expression of those wishing to protest or provide unsought counseling to those seeking abortions.

Though I am a staunch supporter of the freedom of expression, I do recognize that it has justified limits—especially when they protect the life, liberty and property of others. To use the stock examples, freedom of expression does not permit people to engage in death threats, slander, or panicking people by screaming “fire” in a crowded, non-burning theater.

While I recognize that a buffer zone serves a legitimate purpose in enhancing safety, I tended to agree with the court based on utilitarian considerations. The harm to freedom of expression arising from banning protest in public spaces exceeds the risk of harm caused by allowing the protests. But people who engage in threatening behavior should be removed, but that does not require a buffer law. But the arguments in favor of the buffer zone have merit—weighing the freedom of expression against safety concerns is challenging but can be debated in good faith.

Ironically, but as one would expect, the Supreme Court has its own buffer zone. There is a federal law that bans protestors from the plaza of the court. This buffer zone is legally justified by defining the plaza as not being public space. This is like how pro-gun legislatures ban guns from their workplace while ensuring that guns can be freely brought into most other places. There is, as far as I know, no requirement for consistency in the law. But morality usually requires such consistency, at least in the application of principles (although this can be debated).

A principle is consistently applied when it is applied in the same way to similar beings in similar circumstances. Inconsistent application is a problem because it violates three commonly accepted moral assumptions: equality, impartiality and relevant difference.

Equality is the assumption that people are initially morally equal and hence must be treated as such. Naturally, a person’s actions can affect the initially equality. For example, a person who commits horrible evil deeds would not be morally equal to someone who does predominantly good deeds.  Impartiality is the assumption that moral principles must not be applied with partiality. Inconsistent application would involve non-impartial application.

Relevant difference is a common moral assumption. It is the view that different treatment must be justified by relevant differences. What counts as a relevant difference can be very controversial. For example, while many people think that gender is not morally relevant to how much someone should be paid, there are those who disagree.  But relevant difference requires that principles be applied consistently.

Given that the plaza of the court is a space analogous to a sidewalk, then if free expression guarantees the right to protest in front of abortion clinics, then the same should apply to the plaza, even if allowing protests puts the court at risk. To grant protestors access to the sidewalks outside clinics while forbidding them from the plaza of the court would be an inconsistent application of the principle. The same can be said about protesting outside any federal building, such as a place conducting ICE operations.  But, of course, there is always a way to counter this.

One principled way  to counter this view is to show that an alleged inconsistency is merely apparent.  One way to do this is by showing that there is a relevant difference in the situation. If the Supreme Court wishes to morally justify their buffer while denying others their buffers, they must  show a relevant difference that warrants the difference in application. They could, for example, contend that a plaza is relevantly different from a sidewalk. One might point to a size difference and how it impacts protesting. They could also contend that government property is exempt from the law (much like certain state legislatures ban the public from bringing guns into the legislature building even while passing laws allowing people to bring guns into places where other people work)—but they would need to ground the exemption. Otherwise, it would just be defending an inconsistency with more inconsistency.

My view is that there is no relevant difference between the scenarios: if freedom of expression applies to the spaces around private property, it also applies to the spaces around state property (which is the most public of public property).

 

 

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To narrow the moral discussion, I am focusing children migrating to the United States who are not criminals. One reason for this is that the issue of whether criminals should be allowed to come here for the purpose of committing crimes has an easy and obvious answer.

As some Americans like to claim that the United States is a Christian nation, it is tempting to apply Christian ethics to the issue of whether children should be allowed to migrate to the country. While many professed Christians prefer a selective reading of the bible,  the book is clear about this issue: “Thus has the LORD of hosts said, ‘Dispense true justice and practice kindness and compassion each to his brother; and do not oppress the widow or the orphan, the stranger or the poor; and do not devise evil in your hearts against one another.’” The bible also enjoins people to “not mistreat or oppress a foreigner, for you were foreigners in Egypt.” Given these statements, it seems to follow that those who profess to practice Christian ethics would be morally (and religiously) obligated to show compassion and kindness to the children who are strangers and foreigners.

There are those who take these injunctions seriously and act accordingly. However, there are others who profess faith but do not heed the words: “But they refused to pay attention and turned a stubborn shoulder and stopped their ears from hearing.…” To be fair and balanced, they might sincerely believe that Christian ethics is limited to the values they happen to like.

Alternatively, a person could profess they embrace Christian ethics but contend these principles are overridden by more important concerns. One possible line of argumentation is to point out that children who arrive here illegally should not be given the full measure of compassion but sent back to their place of origin. Another line of argumentation is utilitarian: though extending kindness and compassion to migrant children would be laudable, this would require resources that are either unavailable or would be better used elsewhere (such as helping poor Americans). On this view, utilitarian ethics or practical concerns would trump religious based ethics.

There are non-Christians and those, though professing to be Christians, explicitly reject the principles mentioned above. Such people would need other reasons to believe that migrant children should be treated with compassion and kindness.

One option to appeal to a principle of moral debt: when someone has been harmed, the wrongdoer has an obligation to set matters right. While children migrate for various reasons, many from Central America migrate to escape violence and crime. This claim can be challenged—one could argue that the children are sent to the United States for other reasons, such as better economic opportunities. Some of these arguments have merit and must be given due consideration. After all, if children are coming to the United States illegally to escape danger and death, then that is very different morally than if they are coming to have a better life.

But it seems reasonable to think that some of the children are fleeing danger. An obvious concern is why this might obligate the United States to allow them to stay. One answer, as noted above, is to appeal to a moral debt owed by the United States. Some might wonder what the foundation of such a debt might be. There are two easy and obvious answers to this.

The first is that the United States has a well-documented history of political and economic machinations in the region. These include toppling governments, supporting death squads, and other such nefarious deeds. In short, the United States has significantly contributed to the conditions that threaten the children of the region with death and danger. Fairness does, of course, require noting that the United States has not been alone in its adventures in the region (the Cold War helped shape much of the current situation) and some instability and chaos is self-inflicted. Given the United States’ role in creating the current situation, we owe a collective debt, and this would obligate us to addressing the consequences of these past actions.

The second is that a significant cause of violence in the region is the production and distribution of drugs. While there is some local consumption, the people of the United States are a primary market for the drugs produced in this region and the war on drugs pursued by the United States has been even more disastrous in Central and South America than it has been in the United States. Given our role as drug consumers and our war on drugs, the United States is  a major contributor to the violence and danger of the region. Since we are doing wrong, this would create an obligation on our part towards the children that are fleeing the situation we helped to create and continue to sustain.

To use an analogy, if affluent outsiders wreck a neighborhood and are the prime customers for a drug industry that arises there, then the outsiders are moral accountability. If children try to flee the ruins of that neighborhood and head into the affluent neighborhood, it would be wicked of those people to insist on sending them back into the mess they worked so hard to create and maintain.

 

 

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As with regulation, some people are opposed to taxes. Other people are fine with taxes—usually with imposing taxes on others. In general, though, people prefer to not pay taxes. As such, it is hardly a surprise that the companies running the sharing economy try to avoid paying taxes. On the face of it, companies like Airbnb and Uber profess they are just providing a way to connect people to pay for goods and services. This can be seen as a more organized version of the old informal sharing economy in which people sublease, rent out property, or get gas money to drive a friend to the airport.

The old informal economy often operates without taxes being paid (although this is not always done legally). For example, if Professor Sally informally rents her house to her grad student Bob while she is in Europe, Professor Sally and Bob will probably not pay taxes for this—although they would if Bob was renting a room at a hotel Sally owns. While there are probably people who would like taxes paid on even informal transactions, the informal nature of such transactions often makes this impractical. The traditional informal sharing economy is small and decentralized so taxing it would probably be cost prohibitive. There is also the legitimate concern that such private transactions can fall outside of the domain of state concern.

However, when a company such as Airbnb gets involved, things change. The once informal economy becomes centralized around companies and there is also an increase in the scale of operations. After all, it is one thing if Professor Sally’s grad student is paying a modest fee to stay in her house while she is in Europe, it is quite another if Professor Sally starts running her house as a hotel. It also becomes a different matter if the number of people renting out property increases significantly. There would seem to be three important changes between the informal sharing economy and the new sharing economy.  The first is centralization. Instead of people reaching informal agreements as individuals (who often know each other), there would be business transactions through a central company. The second would be the character of the process—short-term renting via a company is closer to the hotel model than to the old informal model. The third would be the number of people involved: the sharing economy would presumably be larger than the old informal economy.

From a practical standpoint, having a centralized company and a large operation allows the collection of taxes to become much more practical. This can justify taxing the sharing economy like other businesses.

From a moral standpoint, if it is acceptable for businesses with the same model (such as the traditional hotel) to be taxed in a certain way, then the same would apply to the new sharing economy. So, if Sally would have to handle taxes if she ran a traditional hotel, then she should have to do the same if she ran her sharing economy hotel through a service like Airbnb. Or perhaps Airbnb should be the one to handle the taxes.

Naturally, it might be wondered why taxes should be imposed on the new sharing economy—even if the new sharing economy is similar to the old economy. Of course, the people who make money through sharing rides or apartments do pay taxes for that income. However, there was some controversy over services like Airbnb paying the hotel tax.

One reason for sharing companies to pay taxes and fees like traditional companies is fairness. After all, the free market is not as free if some companies enjoy special breaks. Although, to be fair and balanced, the American economy is built on special breaks.  Another reason is that the taxes and fees are needed to pay the public services and infrastructure that such companies (and their sharers) utilize. It might be contended that this is already covered by the income taxes paid by individuals engaged in sharing. However, by that logic, businesses would also be exempt from taxes and fees on the grounds that their employees pay taxes. Which would certainly appeal to businesses that pay taxes.

 Also, the growth of the sharing economy imposes new costs on the community like having a similar new business. For example, having many Uber drivers is like adding a large cab company. As another example, having Airbnb rentals in a community makes the area more like a hotel zone, with the accompanying burden on the community. As such, if the community (which includes those who are not part of the sharing economy) faces increased costs then it is acceptable to pass these costs on to those who benefit from this new economy.

There is also the cost of regulating the industries. As  noted in my previous essay, when the sharing economy becomes comparable to the normal businesses (such as hotels and cab companies), then comparable public good (such as safety) regulations should apply. Naturally, these come with costs, and it makes sense that the costs should be connected to the profits, rather than just be taken from the community. For example, with non-professional drivers acting like cab drivers and people renting out apartments and homes like hotels, there are legitimate concerns about public safety. Cab companies and hotels bear some of the cost of their regulation and so too should the sharing companies.

Naturally, there is the general debate about what is a fair tax or fee and concerns about the impact of taxes on the economy. However, it seems reasonable to believe that the sharing economy is analogous to the non-sharing economy and that it should bear a fair share of costs imposed upon the community.

 

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Academic freedom is usually taken as being more than merely the right to freely make specific claims in that it is supposed to provide broad protection in such matters as selecting books, developing curriculum and so on. It is also supposed to protect professors (tenured professors at least) from being unjustly fired or punished for expressing their views. It is, of course, not a license to act without consequences.

While defending academic freedom is often seen as leftist, conservatives have accused the left of restricting the academic freedom of conservative thinkers. While this claim is often hyperbole, there have been past incidents of faculty being punished for holding views that are regarded as politically incorrect. For example, Mike Adams was apparently once denied promotion to full professor based on his political engagement rather than a lack of qualifications. There were past proposals to replace academic freedom with academic justice.  While justice sounds good, the proposal was to substitute an ideological test in place of the general right. In short, academics could research what they wished, if it was consistent with the definition of “justice” in use. There were also proposals for trigger warnings, which also raised concerns about academic freedom. The right, in general, criticized such things and professed to favor freedom. As such, one might think that when they came into power, they would push for freedom.

One specific problem of academic freedom arises for state colleges and universities. While even for-profit schools receive money from the government, state schools receive funding as decided by the state legislature. While academic institutes, they are subject to the control of the state government.

Given that the state government is (in theory) acting in accord with the “will of the people” and that the schools are funded with state money, it is not unreasonable to believe that the state has the right to impose a degree of control over the schools. An important question is the extent to which the state should impose on academic freedom. As might be guessed, people answer this question based largely on their ideology.

As noted above, some of the loudest voices crying out for academic freedom were once on the right. Or rather, those crying out for freedom for certain views. When Republicans have power, they tend to pass laws that restrict freedom. For example, Florida’s state legislature has been busy reshaping the general education of the state schools. The law includes a ban on teaching “identity politics”, it forbids teaching that “systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States” but requires that humanities courses must include selections from the Western canon (even, for example, a GENED class on Japanese literature). And, of course, the Trump regime, which professes to love freedom, has been very busy intimidating universities to push them to conform to his will.

This view of freedom is not surprising. As Mill noted in his classic work on liberty, people rarely make decisions on liberty based on a consistent principle about what should be allowed and what should be restricted. Instead, people decide based on what they like and dislike. As such, it is hardly a shock that folks on the left and right praise freedom when it is protecting something they like while they are happy to restrict freedom when it involves something they dislike.

While the law is whatever those in power say it is, there is still the question of whether the state has the right to make such impositions. As noted above, one way to argue is that since the state funds them and they are public institutions, then the state government has the right to dictate to the universities in such matters as the content of their courses.

If this line of reasoning is good, then this would be a general principle and not one just limited to the Republicans wanting to purge “woke” content and DEI. So, if a state legislature passed laws forbidding teaching business courses or courses in religion, then that would be acceptable under this principle. It would also be acceptable for a law to be passed banning the teaching of Western history, Western values, anything that is seen as endorsing the patriarchy, and anything that is positive about white males and so on. That is, this principle would allow any state to impose any ideology onto the state schools.

Republicans would, one can infer, adamantly oppose to the ideology of their opposition setting the content for public schools. As such, it is probably fair to say that they do not have a general principle about the degree of state control over state schools but rather think that the schools should teach what Republicans like and not teach what they do not like—which is hardly a principle. In my own case, I follow a consistent principle of academic freedom and hence just as I oppose Florida mandating that GENED classes must not teach that “systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States”, I would also oppose a law that required GENED classes to teach this.

 

 

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Years ago, Azim Shariff and Kathleen Vohs had their article, “What Happens to a Society That Does Not Believe in Free Will”, published in Scientific American. This article considers the causal impact of disbelief in free will with a specific focus on law and ethics.

Philosophers have long addressed the general problem of free will as well as the specific connection between free will and ethics. Not surprisingly, studies conducted to determine the impact of disbelief in free will have the results that philosophers have long predicted.

One impact is that when people have doubts about free will they tend to have less support for retributive punishment. Retributive punishment, as the name indicates, is punishment aimed at making a person suffer for their misdeeds. Doubt in free will did not negatively impact a person’s support for punishment aimed at deterrence or rehabilitation.

While the authors did consider a reason for this, namely that those who doubt free will would regard wrongdoers as like harmful natural phenomenon that need to be dealt with rather than subject to vengeance, this view also matches a common view about moral accountability. To be specific, moral accountability is generally held to be proportional to the control a person has over events. To illustrate, consider the difference between these two cases. In the first case, Sally is speeding, texting, and sipping her latte. She doesn’t see the crossing guard frantically waving his sign and runs over the children in the crosswalk. In case two, Jane is driving the speed limit and children suddenly run directly in front of her car. She brakes and swerves immediately, but she hits a child. Intuitively, Sally acted in a way that was morally wrong—she should have been going the speed limit, and she should have been paying attention. Jane, though she hit the children, did not act wrongly, she could not have avoided the children and hence is not morally responsible.

For those who doubt free will, every case is like Jane’s: for the determinist, every action is determined and a person could not have chosen to do other than they did. On this view, while Jane’s accident seems unavoidable, so was Sally’s: Sally could not have done other than she did. As such, Sally is no more morally accountable than Jane. For someone who believes this, inflicting retributive punishment on Sally would be no more reasonable than seeking vengeance against Jane.

 However, it would seem to make sense to punish Sally to deter others and to rehabilitate Sally so she will drive the speed limit and pay attention in the future. Of course, if there is no free will, then we would not chose to punish Sally, she would not chose to behave better and people would not decide to learn from her lesson. Events would happen as determined—she would be punished or not. She would do it again or not. Other people would do the same thing or not. Naturally enough, to speak of what we should decide to do in regard to punishments would seem to assume that we can chose—that is, that we have some degree of free will.

A second impact that Shariff and Vohs noted was that a person who doubts free will tends to behave worse than a person who does not have such a skeptical view. One area where behavior worsens is that such skepticism seems to incline people to be more willing to harm others. Another area is that such skepticism also inclines others to lie or cheat. In general, the impact seems to be that such skepticism reduces a person’s willingness (or capacity) to resist impulsive reactions in favor of greater restraint and better behavior.

Once again, this makes sense. Going back to the examples of Sally and Jane, Sally (unless she is a moral monster) would feel remorse and guilt for hurting the children. Jane, though she would surely feel bad, should not feel moral guilt. This would certainly be reasonable: a person who hurts others should feel guilty if she could have done otherwise but should not feel moral guilt if she could not have done otherwise (although she certainly should feel sympathy). If someone doubts free will, then she will see her own actions as being out of her control: she is not choosing to lie, or cheat or hurt others—these events are just happening. People might be hurt, but this is like a tree falling on them, it just happens. Interestingly, these studies show that people are consistent in applying the implications of their skepticism to moral (and legal) accountability.

One important point is to consider what view we should have regarding free will. I take a practical view of this matter and believe in free will. As I see it, if I am right, then I am…right. If I am wrong, then I could not believe otherwise. So, choosing to believe I can choose is the rational choice: I am right or I am not at fault for being wrong.

I agree with Kant that we cannot prove that we have free will. He believed that the best science of his day was deterministic and that the matter of free will was beyond our epistemic abilities. While science has marched on since Kant, free will is still unprovable. After all, deterministic, random and free-will universes would all seem the same to the people in them. Crudely put, there are no observations that would establish or disprove metaphysical free will. There are, of course, observations that can indicate that we are not free in certain respects—but completely disproving (or proving) free will is beyond our abilities—as Kant contended.

Kant had a practical solution: he argued that although free will cannot be proven, it is necessary for ethics. So, if we want to have ethics (which we do), then we need to accept the existence of free will on moral grounds. The experiments described by Shariff and Vohs seem to support Kant: when people doubt free will, this has an impact on their ethics.

One aspect of this can be seen as positive—determining the extent to which people are in control of their actions is an important part of determining what is and is not just punishment. After all, we should not want to inflict retribution on people who could not have done otherwise or, at the very least, we would want relevant circumstances to temper retribution with justice.  It also makes more sense to focus on deterrence and rehabilitation more than retribution. However just, retribution merely adds more suffering to the world while deterrence and rehabilitation reduce it.

The second aspect of this is negative—skepticism about free will seems to cause people to think that they have a license to do ill, thus leading to worse behavior. That is clearly undesirable. This provides an interesting and important challenge: balancing our view of determinism and freedom to avoid both unjust punishment and becoming unjust. This, of course, assumes that we have a choice. If we do not, we will just do what we do and giving advice is pointless. As I jokingly tell my students, a determinist giving advice about what we should do is like someone yelling advice to a person falling to certain death—they can yell about what to do, but it won’t matter.

 

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As I tell my students, the metaphysical question of personal identity has important moral implications. One scenario I use is a human in a persistent vegetative state. I say “human” rather than “person”, because the human body might no longer be a person. For a metaphysical dualist,  if a person is her soul and the soul has abandoned the shell, then the person is gone.

 If the human is still a person, then it seems reasonable to believe they have a different moral status than a body that that was once a person (or once served as the body of a person). This is not to say that a non-person human would have no moral status—I do not want to be misinterpreted as holding that view. Rather, my view is that personhood is a relevant factor in the morality of how an entity should be treated.

Imagine a human in that vegetative state. While the body is kept alive, people do not talk to the body and no attempt is made to entertain the body, such as playing music or audiobooks. If there is no person present or if there is a person present who cannot sense anything, then this would seem morally acceptable—after all it would make no difference whether people talked to the body or not.

There is also the moral question of whether such a body should be kept alive—after all, if the person is gone, there would not seem to be a compelling reason to keep an empty shell alive. To use an extreme example, it would seem wrong to keep a headless body alive just because it can be kept alive. If the body is no longer a person (or no longer hosts a person), then this would be analogous to keeping a headless body alive.

But, if despite appearances, there is still a person present who is aware of what is going on around them, then the matter is morally different. In this case, the person has been isolated—which is very bad for a person. They have, in effect, been sentenced to solitary confinement.

In terms of keeping the body alive, if there is a person present, then the situation would be morally different. After all, the moral status of a person is different from that of a body of merely living flesh. The moral challenge, then, is deciding what to do.

One option is, obviously enough, to treat all seemingly vegetative (as opposed to clearly brain dead) bodies as if the person was still present. That is, the body would be accorded with the moral status of a person and treated as such.

This is a morally safe option—it would presumably be better if some non-persons get treated as persons rather than risk persons being treated as non-persons. That said, it would still seem both useful and important to know.

One reason to know is purely practical: if people know that a person is present, then they would presumably be more inclined to take the effort to treat the person as a person. So, for example, if the family and medical staff knew that Bill is still Bill and not just an empty shell, they would, one would hope, tend to be more diligent in treating Bill as a person.

Another reason to know is both practical and moral: scenarios arise in which hard choices must be made, knowing whether a person is present is critical. That said, given that one might not know for sure that the body is not a person anymore it could be correct to keep treating the alleged shell as a person even when it seems likely that they are not. This brings up the obvious practical problem: how to tell when a person is present.

Most of the time we judge there is a person present based on appearance, using the assumption that a human is a person. Of course, there might be non-human people and there might be biological humans that are not people (living headless bodies, for example). A somewhat more sophisticated approach is to use Descartes’s test: things that use true language are people. Descartes, being a smart person, did not limit language to speaking or writing—he included making signs of the sort used to communicate with the deaf. In a practical sense, getting an intelligent response to an inquiry can be seen as a sign that a person is present. Or that the LLM is working well.

In the case of a body in an apparent vegetative state, applying this test is a challenge as this state is marked by an inability to show awareness. In some cases, the apparent vegetative state is exactly what it appears to be. In other cases, a person might be in “locked-in-syndrome.” The person is conscious but can be mistaken for being minimally conscious or in a vegetative state. Since the person cannot, typically, respond by giving an external sign some other means is necessary.

One breakthrough in this area is due to Adrian M. Owen. He found that if a person is asked to visualize certain activities (playing tennis, for example), doing so will trigger different areas of the brain and this activity can be detected. So, a person can ask a question such as “did you go to college at Michigan State?” and request that the person visualize playing tennis for “yes” or visualize walking around her house for “no.” This method provides a way of determining that the person is still present with a reasonable degree of confidence. Naturally, a failure to respond would not prove that a person is not present, the person could still remain, yet be unable (or unwilling) to hear or respond.

One moral issue this method can help address is that of terminating life support. “Pulling the plug” on what might be a person without consent is morally problematic. If a person is still present and can be reached by Owen’s method, then this would allow the person to agree to or request that they be taken off life support. Naturally, there would be practical questions about the accuracy of the method, but this is distinct from the more abstract ethical issue.

It must be noted that the consent of the person would not automatically make termination morally acceptable—after all, there are moral objections to letting a person die in this manner even when the person is clearly conscious. Once it is established that the method adequately shows consent (or lack of consent), the broader moral issue of the right to die would need to be addressed.

 

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Not surprisingly, most sexual assaults on college campuses involve intoxication. One reason is obvious: an intoxicated person is vulnerable. Another reason for this is definitional: most (if not all) colleges have a policy that sexual activity with an intoxicated person is, by definition, sexual assault. While the practical and legal aspects of this are important, I will focus on morality.

From an oversimplified moral standpoint, rape is sex without consent. Consent could be lacking for any number of reasons, but the focus is on the impact of intoxication on a person’s ability to consent. To be a bit abstract, the philosophical concern is about consent agency, which is the capacity of the person to give consent. What counts as consent will vary based on whether the matter is considered in moral, practical or legal contexts. What is also not in doubt is that people will disagree about this. However, it should suffice for the purposes of this brief essay to go with an intuitive view of consent which involves a person being able to understand the situation and consciously agree. Setting aside the complexities, I now turn to intoxication.

Intoxication is a proportional impediment to agency of consent: the drunker a person gets, the less capable they become of giving consent. This is because intoxication reduces a person’s ability to understand and to consciously agree. When the person has no consent agency at all, having sex with that person would be rape (that is, sex without consent). Since this agency can be impaired rather than merely eliminated, there is the matter of sorting out at what point consent agency is lost. As with all such things, there will be gray areas between paradigm cases and these areas will be the most problematic. I will get the easy paradigm cases out of the way first.

One paradigm case is when the perpetrator intentionally intoxicates victim using a “date rape” drug of some sort. This would clearly be a case of rape. To use an analogy, if someone drugs my Gatorade so they can take my wallet when I am unconscious, they have committed theft. This seems indisputable.

Another paradigm case is when the perpetrator is an opportunist: he does not drug his intended victim but finds someone who has become incapacitated. This would also be a clear case of rape since the victim is incapable of consent. Continuing the analogy, if I pass out after consuming too much Gatorade and someone takes my wallet, they have committed theft. Naturally, I could be chastised for being so careless—but this would not change the crime.

A third paradigm case is when a person is unimpaired and gives consent—this is a clear case of consensual sex. To use an analogy, if I am unimpaired when someone asks me for money and I hand her some, she is not a thief. Now it is time to explore the grey territory between being unimpaired and being incapacitated. Somewhere in this large territory lies the point at which a person loses their consent agency and is incapable of actual consent.

One problem with finding the boundary at which consent agency ends is that it can be reached well before a person loses the capacity to appear to consent. For example, an intoxicated woman might say “yes” to a request for sex or initiate the act and then actively participate. Despite the appearance of consent, the woman might be incapable of consent—that is, she can engage in consent behavior but has lost the capacity to consent.

This creates a moral and practical problem: how can a person tell when another is capable of consent behavior without being able to consent? This is important for the person interested in sex as well as those involved in any legal proceedings that might follow.

It might be countered that if a person can engage in consent behavior, the person still has agency of consent. That is, apparent consent is actual consent. This is appealing in that the only practical way to determine consent is by observing external behavior. After all, a person does not have epistemic access to the mental states of other people and cannot discern whether the “yes” is a true “yes” or merely “yes” behavior without consent. It also would provide a basis by which witnesses can judge the matter—they merely need to report behavior without speculating on the cognitive state of the person. On this view, there is a presumption that behavior indicates agency.

This view does have appeal. To use an analogy, suppose I I drink enough that I tell a sober friend to drive me to a White Castle so I can buy sliders (something I would never do while sober—and hence have never done) and the folks at White Castle accept my order (shouted incoherently into the drive through). When I regain consciousness and find the empty boxes and White Castle receipt, I could hardly claim that White Castle committed theft by accepting my money. I would certainly regret my decision, but my bad judgment is not the fault of White Castle—as far as the employee could reasonably know, I wanted those sliders.

It is worth noting that a decent person would certainly consider apparent intoxication and from ethics or politeness refuse to accept what seems to be offered freely. To use an analogy, if one of my friends is drunk and says “I love you man, here take my car. No, I mean it. You are the best friend ever!” I certainly would not take his car—even though doing so would not seem to be theft. Likewise, if a someone seems drunk but making it clear they want to have sex, the decent thing is to refuse, escort them safely home and perhaps even guard them from the less virtuous if they pass out. However, if someone accedes to the request, it might seem odd to claim that rape had occurred. But some might see it, intuitively, as rape.

One might also argue that it is better to err on the side of caution and assume a person who is impaired to almost any degree has lost the capacity for consent, regardless of their behavior. But this might seem too low of a bar and there is the practical problem of recognizing low levels of impairment. However, advances in technology could certainly allow smart phones apps for testing intoxication and perhaps an app could be created that combines a blood test for intoxication with a means to record a video of the consent onto a secure (court accessible) server.

The last matter I will consider is when both parties are intoxicated. In some college sexual assault hearings, the man has countered by asserting that since both parties were intoxicated, they sexually assaulted each other. This defense has not, apparently, proven successful. However, the underlying principle is sound. If sex without consent is rape and being intoxicated precludes consent, then if both parties are intoxicated, then they raped each other. So, if both are intoxicated, both are guilty. Or both innocent. To use an analogy, If Sally and I are both drunk and start handing our money to each other, either we are both thieves or both not thieves.

In terms of the innocent option, the main argument would be that just as intoxication impairs the agency of consent, it also impairs the agency of culpability. Agency of culpability is the capacity to act in a way that makes the person accountable for their actions. As with the agency of consent, this can be impaired in varying degrees or eliminated. As with agency of consent, agency of culpability rests on the ability to understand a situation and the capacity to make decisions. In the case of children, these tend to be linked: minors are incapable of giving certain forms of consent that adults can and are also often held to different standards of culpability. This is one of the many reasons children should not be charged as adults—they are not adults.

Given that agency of consent and agency of culpability are so similar, it seems reasonable to hold that what impairs one would also impair the other. As such, if a person was so intoxicated that she could not provide consent, then it would seem to follow that she would also be so intoxicated that she would not understand the need to get consent or whether she was assaulting another person. Thus, if two people are both too intoxicated to consent, they are also too intoxicated to be culpable.

The obvious counter is that people are held accountable for actions they take while intoxicated. As some truly novice lawyers have found out, the “too drunk to know better” defense does not work legally. It also tends to fail in a moral context in that a person is accountable for willingly becoming intoxicated and is thus responsible for actions taken while intoxicated (unwilling intoxication can change matters). As such, it might be the case that agency of consent can be eliminated by willingly becoming intoxicated, but that agency of culpability cannot be washed away with alcohol.  If this is the case, if people have sex while both are adequately intoxicated, they are raping each other.

 

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In my previous essay, I presented some groundwork and stage setting for the discussion to follow. In this essay I will look at consent.

Intuitively, what makes some activities wrong (and often criminal) is lack of consent. Theft, for example, is taking property without the owner’s consent. Kidnapping, as another example, is transporting a person without consent. In the case of rape, the activity is sexual in nature (to be deliberately vague) and occurs without consent. While these simple definitions have appeal, the matter of sorting out what counts as consent and what constitutes acting without consent is complicated. To focus the discussion, I will revisit a controversial example.

Years ago, conservative intellectual George Will triggered a firestorm among liberal columnists and bloggers with his June 6 column. The claim that triggered the most outrage was his assertion that “when they make victimhood a coveted status that confers privileges, victims proliferate.”

Some of those attacking Will interpreted him as asserting that women want to be raped. While some awful people believe that, this reading is probably not Will’s actual position. Another interpretation, which is supported by the rest of his column, is that some women will embrace a broad definition of “rape” and interpret their experiences to match that definition. The motivation, at least as it seemed to Will, is to gain a “coveted status” that “confers privileges.” My concern here is not with whether Will is correct. Rather, I want to  re-examine what he takes as an example of how one becomes a member of this “privileged” class of victims.

Will uses an example taken from a report about Swarthmore College. In 2013, a woman was in her room with a man “with whom she’d been hooking up for three months”:

 

“They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.’”

 

As Will notes, six weeks later the woman reported that she had been raped. Will seems to hold that the woman was not actually raped and decided to join the “privileged” class of victims by redefining her experience as rape. Others might claim that she had been “brainwashed” by feminist ideology or political correctness. Setting aside the topic of motivation, there is an important question of whether the incident was rape. As Will showed, those embracing a specific form of conservative ideology presumably consider it to not be rape.

On the face of it, it is easy to argue the incident was rape. While the man did not threaten or use force, he did engage in a sexual act after she had said that she did not want to have sex with him. Sex without consent is rape and thus she was raped.

To use an analogy, suppose for a few months I had allowed a friend to use my truck, but then we decide (or so I think) that this will no longer be part of our relationship. She comes to borrow my truck and I basically say “No, I don’t want to.” She stops but then returns, takes the keys and drives away. She has engaged in theft by taking my truck without consent. Our previous agreement and behavior are not relevant, since we ended the agreement.

While this view has merit, it is worth considering an alternative. One complication is that consent is a matter of communication and communication can be imperfect. This creates the practical (and moral) problem of sorting out when consent has been given, when it has not, and when (and how) a person should know the difference.

In the specific case, the two parties had been having consensual sex (“hooking up”) for three months. On the face of it, once a relationship is established then it is not unreasonable to accept an assumption of consent. To use an analogy, before COVID moved the game online, I used to keep beer and snacks on hand for my Sunday D&D game. My longstanding friends did not need to explicitly ask permission to get the beer or snacks, since there is a reasonable assumption that they have standing permission. I would, in fact, have an obligation to tell them if certain beers or snacks were off limit—which would then obligate them to not take the specified beer or snacks.

In the case at hand, let it be assumed that the woman changed the relationship from “hooking up” and ended the sexual aspect. This would remove the assumption of consent (unless otherwise informed). As such, the man could no longer assume that she was consenting unless he was told otherwise.

The woman also notes that she “basically” told him she didn’t want to have sex with him—which would show her lack of consent. The man should have left it at that and not tried again.

However, a devil’s advocate might raise certain points. The first is that the brains of young people are different from adult brains, especially in judgment and impulse control. The second is that the desire for sex can be strong and even the prospect of sex impedes rational judgment. The third is that people in general and young people in particular are bad at communication. The fourth is that communication is not merely a matter words—that consent or lack thereof can also be conveyed by actions. Such a devil’s advocate might allege, in his devilish way, that the young man, driven by basic biological desires and impeded judgment, decided to make another attempt at sex and wrongly interpreted, perhaps due to his immature brain and lack of communication skills, her lack of action as consent. That is, he honestly believed that he had consent and had not raped her. She might have also shared this belief for six weeks.

The obvious reply is that none of the devil’s advocate’s claims matter: what matters is that the woman said that she did not want to have sex. Thus, it was sex without consent. But the devil might continue and offer an analog.

Suppose my friend Sally likes driving trucks and hates to drive alone. After we have been friends a while, I agree to let her drive my truck and agree to go with her. This goes on for three months and I find I have gotten tired of this aspect of our relationship and tell her so. As far as I can tell, she agrees.

Then I invite her to come over and sit in my truck. After a while, she reaches for the keys and I say “no, I am not letting you drive and I am not riding with you.” Rebuffed, she pulls her hand back. But, a few minutes later she is after the key again. I do nothing. She takes the key and puts it in the ignition. I say and do nothing. She starts the truck and takes me along for the ride.  I am tired, so I just sit back and let her drive. When she gets back, I take the key out of the ignition. Six weeks later I call the police and accuse her of kidnapping me and stealing my truck.

Theft is taking property without consent and kidnaping is transporting a person without consent. If the woman did not consent in the original situation, then I did not consent in the analogical situation. If the man was a rapist, then Sally was a thief and a kidnapper. However, I suspect that people would react to my claim that Sally kidnapped me and stole my truck by saying that I should have said something when she reached for the keys a second time—by letting her simply take them and drive away with me without another word would seem to show I consented. After all, her reaching for the key and so on could be seen as requests for consent—I could have said “no.” Of course, it could be countered that this view is wrong: Sally is now a kidnapper and truck thief because of my original statement which withheld consent.  After all, it might be argued, saying “no” once suffices—and until an explicit, verbal “yes” is given the original “no” is in place. One should not need to repeatedly say “no” just to maintain the “no”, especially when it comes to sex.

Some might reject the truck analogy while holding the original case was rape. One avenue of reply is to argue that the requirements of consent differ in different contexts, which seems reasonable—the challenge is working out the rules of consent. For example, one could argue that sex always requires affirmative consent each time it is initiated and that if consent is withdrawn it must be explicitly restored.

The example considered in this essay did not explicitly involve drinking—however, many sexual assaults on campus do. In the next essay the moral impact of intoxication will be considered.

 

 

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